IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

 : NO. 05-432

v. :

 : CIVIL ACTION

NELKIS GUTIERREZ-GAINZA : NO. 09-2613

 :

DuBOIS, J. AUGUST 10, 2009

M E M O R A N D U M

I. INTRODUCTION

Petitioner, Nelkis-Gutierrez-Gainza, is currently serving a term of 240 months

imprisonment for his conviction of conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (Count One), and distribution

of, and aiding and abetting the distribution of, nine kilograms of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2 (Count Two). On June 8, 2009, petitioner filed

a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to

28 U.S.C. § 2255 which was imposed by this Court on June 26, 2007. Presently before the

Court is petitioner’s Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal

Custody pursuant to 28 U.S.C. § 2255.

Petitioner raises the following issues in his § 2255 Motion:

1. Ineffective assistance of counsel on the ground that counsel failed to argue that he

should have been charged as a “mule”; 

2. Ineffective assistance of counsel for failing to argue that his sentence should be set

aside because he wore his prison khakis during the trial and thus was presumed guilty; and,

3. The failure of the Government to prove by a preponderance of the evidence that

petitioner had a prior felony drug conviction.

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For the reasons stated below, petitioner’s § 2255 motion is denied.

Petitioner filed a Notice of Appeal to the United States Court of Appeals for the Third 

Circuit after imposition of sentence. On July 9, 2008, the Third Circuit affirmed the conviction

and sentence imposed on June 26, 2007. United States v. Gutierrez-Gainza, 284 Fed.Appx. 975

(3d Cir. 2008).

II. DISCUSSION

A. Claims of Ineffective Assistance of Counsel

1. Standard for Ineffective Assistance of Counsel

“Strickland v. Washington supplies the standard for addressing a claim of ineffective

assistance of counsel.” United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003) (citing

Strickland, 466 U.S. at 687). “The benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. This

standard requires a familiar two-part inquiry. “First, the defendant must show that counsel’s

performance was deficient,” that is, “that counsel’s representation fell below an objective

standard of reasonableness.” Id. at 687–88. The measure for counsel’s performance under the

first prong of Strickland is “whether counsel’s assistance was reasonable considering all the

circumstances” including “prevailing professional norms.” Id. at 687–88. “Second, the

defendant must show that [counsel’s] deficient performance prejudiced the defense.” Id. at 687. 

The defendant must demonstrate that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

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2. Claim that Counsel Was Ineffective for Failing to Object to

Trial of the Case with Defendant in Prison Clothes

Petitioner argues that he received ineffective assistance of counsel because counsel did

not object to the fact that he wore prison clothes during the trial. Without discussing whether or

not that conduct fell below an objective standard of reasonableness, the Court concludes that

petitioner has failed to present any evidence of prejudice. Specifically, he has not shown that,

had he not been wearing prison clothes throughout the trial, he would not have been convicted, or

that he would have received a lesser sentence. In short, he has failed to establish prejudice. 

There is no reasonable probability that the outcome of the trial would have been different had he

not worn prison clothes at trial. Thus, his § 2255 motion on this ground is denied.

3. Claim That Counsel Was Ineffective for Failing to Argue That

Petitioner Should Have Been Charged as a “Mule”

Petitioner claims that counsel was ineffective for failing to argue that petitioner should

have been charged as a “mule.” That claim is rejected. The status of serving as a “mule” or a

carrier in a drug conspiracy is a factor that can and was argued in mitigation of sentence. 

Petitioner’s counsel made that precise argument at sentencing. However, the fact that

Gutierrez-Gainza had previously been convicted of a felony drug offense and was subject to an

enhanced 20 year mandatory minimum sentence, rendered the argument moot. The Court had no

option other than to impose the 20 year mandatory minimum sentence once it was established

that petitioner had a prior felony drug conviction. 

If Petitioner is claiming that counsel should have argued at trial that he was a “mule,” that

argument would have been wholly inconsistent with the nature of the defense that his counsel

raised at trial. Specifically, at trial, counsel argued that petitioner was not the person who

transported or transferred the satchel of cocaine to the Government’s cooperating witness. That

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argument precluded counsel from taking the position at trial that petitioner was a mule. Under

those circumstances, defendant has failed to show that counsel’s performance fell below an

objective standard of reasonableness with respect to the “mule” argument. 

B. Claim That the Government Failed to Prove by a Preponderance of

the Evidence That Petitioner Had a Prior Felony Drug Conviction

Petitioner also claims that the Government failed to prove that he had a prior felony drug

conviction. The Court rejects this argument.

Before imposing sentence on June 26, 2007, following an evidentiary hearing, the Court

found that the Government had met its burden of proof by a preponderance of the evidence of

establishing that petitioner had a prior drug felony conviction which he had sustained in a

Minnesota state court. The effect of the prior conviction was an enhanced 20 year mandatory

minimum sentence.

This precise issue was raised on direct appeal to the Third Circuit. In its ruling on July 9,

2008, affirming the judgment of this Court, the Third Circuit concluded that this Court’s finding

that petitioner had a prior Minnesota drug felony conviction was not clearly erroneous. United

States v. Gutierrez-Gainza, 284 Fed.Appx. 975 (3d Cir. 2008). Because this issue has been

litigated, it cannot be relitigated, and the § 2255 motion is denied on this ground.

III. CONCLUSION

For all of the aforementioned reasons, petitioner’s Motion to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 is denied.

An appropriate Order follows:

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